Monday, June 14, 2010

Take Five

The Fifth Amendment Self-incrimination Clause

"...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."

The right against self-incrimination is not an American construct. In fact, it can be traced to common law dating back to biblical times.

The right against self-incrimination is but one of many found in the Fifth Amendment, yet it seems the most widely known (even if under -utilized). It is, for sure, the clause that has the most profound effect upon the conduct of law-enforcement officers as they investigate crimes. Perhaps that is why the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court's ruling in Miranda v. Arizona.

Today the Supreme Court requires that police inform all criminal suspects of their right to remain silent prior to custodial interrogation - that means that if you reasonably believe you are not free to leave, then the police must inform you of your right to remain silent before they ask any questions indented to incriminate you lest anything you say and anything derived from it become inadmissible.

Although your right to remain silent exists regardless of whether you are under arrest, the requirement that you be informed of the right extends from the point of arrest throughout the suspect's involvement in the criminal justice system.

Many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, however studies have shown that conviction rates have not changed significantly since the Court first required police to inform arrestees of their right against self-incrimination.

When you find yourself facing police questioning, whether you are in custody or just curbside, remember your right to remain silent and use it and do not allow yourself to get sucked into the criminal justice system without a lawyer.

For more on this and other criminal defense issues in California, visit or call The Law Office of David J. Givot at (888) 293-0396.

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